The following is an excerpt from the published interview with Larry Johnson. To see the full interview, please click on the link to download the article above or below.
Q: What were the most rewarding aspects of your career in pursuing international law?
I have had 37 years of being a lawyer in United Nations (UN) organizations, including the UN itself, the International Atomic Energy Agency, and the International Criminal Tribunal for the former Yugoslavia (ICTY), so there have been some highlights throughout. Some of them were related to work in the UN Office of Legal Affairs, where we had to deal with the attempt of the U.S. government in 1988 to close the Palestine Liberation Organization (PLO) Mission. That got us involved with the federal district court, where the UN filed an amicus brief. It was a great mix of international law and U.S. constitutional law. The judge sided with us that Congress did not clearly intend to supersede the UN/U.S. Headquarters treaty by adopting a law closing all PLO offices in the United States, including the PLO Observer Mission to the UN. Going back to settled constitutional law doctrine, the judge ruled that as treaties and acts of Congress are both the supreme law of the land. If there is a conflict, whichever is later in time applies as long as it is absolutely clear that it is the intention of the later action, in this case an act of Congress, to supersede the treaty. In this case the judge found, as we had argued, that the requisite congressional intent to violate and supersede the treaty did not exist.
The other highlights were being involved in the creation of international criminal tribunals. The UN Legal Office prepared the statute for the International Criminal Tribunal for the former Yugoslavia, which was very challenging and exciting. We were in deep water because there wasn’t anything to draw on other than Nuremberg and the courts created in Germany by the Allied Powers after the Second World War. And we had 60 days to do it. A lot of it was just flipping a coin in making policy choices. We assumed that the statute would go through lots of negotiations and tinkering by the Security Council, but at the end of the day, for various reasons, the Council adopted it as it was. So after having begun what seemed to be a very theoretical, politically motivated, and time-consuming initiative, all of a sudden it was adopted “as is” and came to life.
The second tribunal, the International Criminal Tribunal for Rwanda (ICTR), was not done by the Secretariat, but rather by members of the Security Council. Following that tribunal and after I had left, the Legal Office was involved in the creation of the tribunals for Sierra Leone and Cambodia. I was back in the Office of Legal Affairs when we created the Special Tribunal for Lebanon. This is a whole different animal, because it does not have war crimes as its subject-matter jurisdiction. The Special Tribunal for Lebanon is applying the Lebanese domestic law concerning terrorism and bombings with regard to the assassination of the late Prime Minister Rafik Hariri.
Q: Critics of ad hoc tribunals such as those you have mentioned have highlighted that the international criminal tribunals prosecute too few people, that they cost too much money, and that the tribunals do not necessarily address the needs of those living in these countries. What are your responses to these critics and your views on the role of these tribunals?
On the number of indictees, actually, at the beginning of both the ICTY and the ICTR, the criticism was that they were indicting too many, and all of a sudden there were a lot of people who were being arrested or were turning themselves in. There were quite a few fugitives for a while, but in the end there are only two fugitives left for the ICTY. The Security Council, on the recommendation of the ICTY itself, said that the tribunals should limit themselves, not to every person who had committed serious violations of international humanitarian law, but to only the most senior who were responsible for the most serious crimes. So that way they began to shorten the list. And in fact some of those indictees, by procedures adopted in the ICTY, if they are middle or lower level perpetrators, can be back to local courts in the region, for example in Zagreb, Belgrade or Sarajevo, once the ICTY is satisfied that due process will be had, and that the trial will not be a sham or a kangaroo court. If the ICTY thinks that one of these domestic proceedings is not going well according to international standards of due process, it has the power to pull it back. In that way, they began to cull some of these indictees who would not be indicted today, but who were indicted in the early years when they could not get their hands on the big fish.
Later, for the tribunals for Sierra Leone and Cambodia, their mandates included that they were to try only the most senior people who had committed the most serious crimes. That’s why Sierra Leone had only a few indictees, around 10–12. And they are all done except for Charles Taylor, who’s being tried now. It’s the same with Cambodia, where there is a relatively small number of indictees because they wanted to get the top leadership.
Q: What do you think are the greatest legal barriers to the UN becoming a more effective institution?
Now you’re getting into UN law. In terms of being an effective organization—for what purpose? I suppose if you look at the primary objective of the UN Charter, which is to save succeeding generations from the scourge of war, you are talking about the ability of the UN to maintain international peace and security, which is primarily the function of the Security Council. Obviously there has been a lot written in the past 60 years about how the Security Council is or is not functioning, whether the veto should be revised or expanded to have new countries get the veto or at least new permanent membership—rumor has it that World War II is over—and that the Security Council is too political an institution. I’m not sure the veto is an objective legal obstacle, because if there wasn’t the veto, we would not have the organization we have today. Every member of the UN understood that and accepted the veto when they signed on to the Charter. Plus, if this “legal barrier” were removed, the Council could be adopting resolutions against the fundamental interests of the major Powers who would simply ignore the Council resolution, eroding its credibility over time. There could, as an alternative to the UN, perhaps be several organizations of like-minded states, but there would not be a universal organization. And there are high points, such as the actions leading up to the first Persian Gulf War against Iraq, when the organization actually began functioning exactly as its 1945 authors intended it to, with the five permanent members working together, meeting together, and then going to the whole Security Council. A lot of the members of the organization were not used to that and said, “What is this? The P5 are now uniting and dictating to us, imposing sanctions all over the place!” But in fact that’s what the organization was intended to be like. So the biggest obstacle is dealing with the feeling of many other countries that it’s not their organization, the Security Council is too powerful, and the permanent members are abusing their privileged position. You have to deal with that appearance or reality without tearing down the structure. It is trite but true to say the UN will work effectively when the political will is there of all members to make it work—that is not a legal barrier.